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Vite-Cruz v. Sanchez

United States District Court, D. South Carolina, Columbia Division

December 19, 2018

Jose Luis Vite-Cruz, Petitioner,
v.
Yadira Del Carmen Sanchez, Respondent.

          ORDER GRANTING PETITIONER'S HAGUE CONVENTION PETITION AND REQUIRING THE RETURN OF THE CHILD TO MEXICO

          Donald C. Coggins, Jr., United States District Judge

         This matter was initiated by a Verified Petition filed by Petitioner Jose Luis Vite-Cruz ("Father") under the Convention on the Civil Aspects of International Child Abduction (the "Hague Convention") and the International Child Abduction Remedies Act ("ICARA"), 22 U.S.C. §§ 9001-11, formerly cited as 42 U.S.C. §§ 11601-11.[1] ECF No. 1.

         Having considered the testimony of the witnesses, stipulations of the parties, exhibits and testimony presented at trial, and arguments of counsel, the Court hereby GRANTS Father's Hague Convention Petition and hereby ORDERS the immediate return of A.V., a twelve-year-old child (the "Child"), to his habitual residence of Hidalgo, Mexico, and his Father. To this end, the Court issues the following findings of fact and conclusions of law under Fed.R.Civ.P. 52. To the extent that any findings of fact constitute conclusions of law, or vice-versa, they shall be so regarded.[2]

         I. Introduction

         The Hague Convention is intended "'to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence.'" Maxwell v. Maxwell, 588 F.3d 245, 250 (4th Cir. 2009) (quoting Hague Convention pmbl.). Importantly, Courts construe the Hague Convention so as to deter parents from unilaterally removing the children from their habitual residence and crossing international boundaries in search of a more sympathetic court to arbitrate custody related disputes. Miller v. Miller, 240 F.3d 392, 398 (4th Cir. 2001). The Sixth Circuit Court of Appeals has explained that these goals are aimed at:

situations where one parent attempts to settle a difficult family situation, and obtain an advantage in any possible future custody struggle, by returning to the parent's native country, or country of preferred residence . . . . Under such circumstances, the Hague Convention is clearly designed to insure that the custody struggle must be carried out, in the first instance, under the laws of the country of habitual residence . . . .

Friedrich v. Friedrich, 983 F.2d 1396, 1402-03 (6th Cir. 1993). To further the goals of the Hague Convention, courts are called on to preserve the status quo-the return of the child to his home country for further proceedings. Miller, 240 F.3d at 398. To that end, "the return remedy does not alter the pre-existing allocation of custody rights between parents; the Convention generally leaves ultimate custodial decisions to the courts of the country of habitual residence." Alcala v. Hernandez, 826 F.3d 161, 169 (4th Cir. 2016).

         Article 12 of the Hague Convention sets forth a "general rule that where appropriate proceedings are commenced within one year of a child being wrongfully removed, a court 'shall order the return of the child forthwith.'" Id. However, "the return remedy is not absolute." Lozano v. Montoya Alvarez, 572 U.S. 1, 5 (2014). The Hague Convention "provides a limited number of narrow exceptions to the general rule of return." Alcala, 826 F.3d at 169. For example, Article 12 of the Hague Convention permits a court to decline return if "it is demonstrated that the child is now settled in its new environment." Hague Convention, Art. 12. A court "may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views." Id. at Art. 13.

         Prior to setting forth its findings of fact and conclusions of law, the Court lauds the parties and lawyers involved in this case. Counsel for both parties, a mediator, and a guardian ad litem have all put countless hours of work into this case without receiving any remuneration. The Court is incredibly grateful to all of the lawyers involved in this case, for they have done an outstanding job and serve as a benchmark of the type of pro bono service and professionalism that all lawyers should strive to achieve. Indeed, the parties have received representation that rivals that of a multimillion dollar commercial dispute. Moreover, the parties have admirably complied with all court orders in this case and have made a good faith effort to resolve the case without Court intervention.

         All Hague Convention cases require courts to undertake the unenviable task of determining whether to return a child to another country and necessarily removing him from residence with one of his parents. Often, these cases involve a malicious abduction undertaken by a parent with ulterior motives. In contrast, this case involves two loving parents that simply want custody of their minor son. This Court, however, is not empowered to make a custody determination. Instead, the Court must interpret and apply an international treaty, which has been ratified and codified by federal law.

         Indeed, if this Court were making a custody decision militated by the best interests of the child, the decision might well be very different from the one announced herein. Accordingly, the Court issues this Order with a heavy heart, with full knowledge of the significant ramifications it has for both parents and their minor son. With these prefatory remarks in mind, the Court turns to the findings of fact and conclusions of law.

         II. Procedural History

         1. Father filed his Hague Convention application in Mexico on or about April 24, 2017.

         2. On June 26, 2018, the Mexican Central Authority certified that Child's removal from Mexico was wrongful.[3]

         3. Father retained pro bono counsel and filed a Verified Emergency Petition and ex parte Motion for a Temporary Restraining Order ("TRO") on July 16, 2018, in the District of South Carolina. ECF Nos. 1, 7.

         4. On July 17, 2018, the Court held an ex parte telephone conference and indicated that it would issue an expedited TRO prohibiting Respondent Yadira Del Carmen Sanchez ("Mother") from removing the Child from the District of South Carolina pending a preliminary injunction hearing. ECF No. 13.

         5. The Court held a preliminary injunction hearing on July 24, 2018. ECF No. 17. Mother was present at the hearing with the Child. At the conclusion of the hearing, the Court converted the TRO to a preliminary injunction, continuing the prohibition on Mother removing Child from the District of South Carolina. ECF No. 17. On July 27, 2018, the Court issued a written order memorializing its findings. ECF No. 21.

         6. On July 26, 2018, the Court appointed Elliott B. Daniels[4] and Susan O. Porter, both of Murphy and Grantland, P.A., to represent Mother in this matter. ECF No. 20.

         7. After appointing Mr. Daniels and Ms. Porter, the Court held a telephone conference with counsel on August 7, 2018, in order to discuss scheduling issues. ECF No. 22.

         8. Following the entry of a consent scheduling order, the Court appointed Richard Whiting as a Guardian ad Litem ("GAL") for the Child and directed him to prepare a final report prior to the trial in this matter. ECF No. 26.

         9. The parties participated in mediation on September 12, 2018, and made a good faith effort to resolve the case, although the mediation was ultimately unsuccessful.

         10. On September 26, 2018, Father filed a Motion in Limine and Objections to the GAL's report, seeking to exclude a variety of evidence contained in the report. ECF No. 37.

         11. The parties each submitted proposed Findings of Fact and Conclusions of Law to the Court prior to trial. The parties agreed that the submissions would be ex parte so as not to reveal any trial strategy.

         12. The Court held a bench trial on October 4 and 5, 2018, in Columbia, South Carolina. Mother was present in the courtroom, and Father was present via teleconference from Mexico. At the beginning of trial, the Court granted in part and denied in part Father's Motion in Limine. Essentially, the Court held that it would consider the factual findings in the GAL's report to the extent appropriate under the Hague Convention. However, the Court explicitly acknowledged that it was not making a best interests of the child determination, and, thus, the GAL's report would not be considered in the manner typical to family court proceedings.

         13. During the two day trial, each party presented witnesses, and, at the conclusion of the trial, the Court met with the Child in chambers without the parties or counsel present.[5] After the bench trial, the parties were provided with a copy of the transcript from the Court's in-chambers meeting with the Child.

         14. On November 2, 2018, the Court reconvened the parties and heard closing arguments; the parties then submitted proposed written Findings of Fact and Conclusions of Law. During this hearing, the Court denied Father's Motion for Directed Verdict, which was made during trial. ECF No. 53.

         III. Findings of Fact

         A. Undisputed Facts

         15. Prior to trial, the parties entered into a joint stipulation as to several factual issues, which are set forth below.

         16. Father is the father of the Child and Mother is the mother of Child. ECF No. 40 at 1.

         17. Child was born in Charleston, South Carolina, on March 17, 2006. Id. He is a dual-citizen of Mexico and the United States. Id.

         18. Father is a Mexican citizen and resident. Id.

         19. Mother was born in Mexico; has been a Lawful Permanent Resident of the United States since August 19, 1997; and is a resident of Richland County, South Carolina, where she presently resides with the Child. Id.

         20. Child resided for some time in South Carolina from his birth in 2006 until he began residing in the state of Hidalgo, Mexico, with Father. Id. Although the circumstances of Child's initial move from the United States to Mexico with Father are in dispute, the parties agree that the Child lived exclusively in Mexico from the time Child began residing in Mexico until approximately November 2016. Id. at 1-2.

         21. For purposes of the "habitual residence" requirement within the meaning of the Hague Convention, until Child traveled from Mexico to the United States with Mother on or about December 1, 2016, Child was a "habitual resident" of Mexico. Id. at 2.

         22. For purposes of the "exercising custody rights" requirement within the meaning of the Hague Convention, Father and Mother had sufficient rights of custody under Hidalgo and Mexican law as that term is used under the Hague Convention and ICARA. Id. Thus, Father was exercising his custody rights within the meaning of the Hague Convention prior to the time Child traveled with Mother from Mexico to the United States on or about December 1, 2016.[6] Id.

         B. Evidence Presented at Trial

         23. The parties do not dispute that Father and Mother were married in the United States in 2005 while living in Charleston County, South Carolina. They have never been formally divorced.

         24. After the Child's birth, Father and Mother traveled to Mexico with the Child in 2006. For approximately four months, the family lived together in Zacualtipán de Ángeles, Hidalgo, Mexico.

         25. Thereafter, Mother and the child traveled to North Charleston, South Carolina. For a period of time while Father remained in Mexico, the Child lived with Mother and her parents in the North Charleston area. In 2008, Father returned to North Charleston, South Carolina. At that time, Mother was in a relationship with another man and was pregnant with his child.

         26. After Father returned to North Charleston, he and Mother lived apart but shared the care and custody of Child. More specifically, Child would stay with Mother for a few days and then go to stay with Father for a few days. This arrangement continued for a short while until Mother fell on ...


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